Clip[pers] his tongue!

April 28, 2014 - by: Josh Sudbury 0 COMMENTS

This past week the biggest story in the NBA was not the excitement of the first round of the playoffs, but the comments L.A. Clippers owner Donald Sterling allegedly made to his girlfriend. In an audiotape released Friday by TMZ, a man (allegedly Sterling) is heard chastising his girlfriend for associating with black people and bringing them to his team’s games.  ThatsRacist Several authors and bloggers have already written about the deplorable worldview espoused by the man in the tape alleged to be Sterling so I won’t rehash the obvious. Indeed, the audio reveals personal views one might expect to be held by resisters of the civil rights movement, but not by that of the owner of an NBA franchise 50 years after the passage of Title VII. But a different lesson about our times can be learned from the incident, which concerns the prevalence of audio and video records in today’s world. In our technology-laden society, every smart phone doubles as a camera, tape recorder, video camera, word processor, etc. You name it, and your phone—and your employees’ phones—can probably do it, including secretly recording conversations between themselves and supervisors. On top of that, it takes almost zero technical savvy for someone to make a recording and post it to YouTube, Twitter, Facebook, or any number of social media sites instantaneously. The majority of states permit the secret recording of conversations so long as at least one party to the conversation consents to the recording. In those states, such an audio recording could wind up as evidence against the company in court or before a government agency. In the Clippers’ case, it’s the owner himself who is alleged to have made the statements. So, it’s obvious that his statements reflect directly on the organization. But would the result be any better if one of your mid-level supervisors was caught on tape making an off-color joke or sexually charged comment about another employee? The answer is simply no. In addition to the potential liability that may arise from such statements in a discrimination or harassment lawsuit, the company almost certainly would lose the verdict in the court of public opinion. All hope is not lost, however. Employers can minimize the potential for such occurrences by committing to provide anti-discrimination and anti-harassment training for their managers on at least an annual basis. You should also remain in contact with your workforce and get to know your managers. Many times, when a manager is caught on tape making these kinds of statements, it isn’t the first time. Being present in the workplace will help you identify potential bad apples as well as remind your employees to be on guard because their words and actions are being noticed. Finally, employers can adopt and enforce policies prohibiting employees from making secret records in the workplace. Such policies help foster open communications in the workplace and protect confidential or trade secret information. Employers, however, would be wise to consult with outside counsel before implementing or enforcing such a policy to ensure it doesn’t encroach on employee rights. In the hopefully unlikely event you have an employee who sympathizes with Mr. Sterling’s alleged views, nothing short of a muzzle may be appropriate.

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